The Challenges For Homosexual Marriage

The Challenges For Homosexual Marriage


Jay B. Gaskill

Should the United States attempt to redefine marriage to accommodate same gender couples? The discussion is a heated one and it will continue to divide us, hopefully without bitterness. The mayor of San Francisco will be congratulated by liberals for moving the discussion to the front page, and thanked by social conservatives for hurting the chances of the presumptive Democratic nominee for president, the junior Senator from Massachusetts who voted against the Defense of Marriage Act and must now “explain” his current opposition to gay[1] marriage without alienating his most liberal constituents.

The Subtexts

But the subtexts here are actually more important than the issue itself, which – let’s be honest – will affect only a miniscule percentage of the total population. Subtext One, that this is all about homophobia, is a red herring. I am persuaded by accumulating evidence that a gay predisposition is an inherited characteristic of a small percentage of men and women, weakly determinative of behavior in some instances, more strongly in other, much like left handedness (a condition I know from “first hand” as it were). From this perspective, long term, monogamous gay-gay romantic relationships cannot reasonably be condemned as “immoral”. To those who have irrevocably decided, based on scripture or tradition, that gay sexual behavior is inherently immoral: We can agree to disagree, but I urge you to read on because you will find the rest of my analysis informative.

I acknowledge the pain of exclusion that most gays experience. That said, we must be reminded that on the larger stage of unresolved human problems, gay marriage is just a boutique issue, for the most part the passionate cause of very well educated, white, affluent social liberals.

But the gay marriage discussion itself is an extremely important one for our culture and polity because of one remaining subtext. And we should not allow that discussion to be sidelined by a fruitless argument over the “morality” of gay sexual activity among adults. The really important subtext? The future of family life.

The family unit, as a stable institution within which children are brought into the world and reared to become responsible, happy, productive and moral adults, is challenged by more corrosive social, economic and counter-cultural forces than ever before.

Permit me a cartoon-sketch of our predicament. It will be “cartoon” in the sense that I’m doing a simplified line drawing, high contrast portrait in order to clarify a point essential to our discussion:

Most urban areas resemble the one where I devoted three decades to the defense of indigent criminals. This population consisted almost entirely of fatherless males, pushed out of the home for economic reasons (as when their presence impaired the flow of welfare to the remaining females). They joined gangs to replace absent fathers or otherwise joined loose cohorts of feral males that make the inner city a more dangerous place than some third world countries. Our nation’s prison populations and parolee caseloads are filled beyond capacity with these males. Few have ever seen the inside of a church, received a parent’s patient moral guidance or an education in the basic skills needed to hold a low level job.

Surrounding the inner city, there are two cohorts, distinct for a host of reasons, but primarily because of “family values”.

The first are the traditionalists, many consisting of the newer arrivals to the US, the “imports” who carry traditional religious predispositions. Others, many of them the so called “blue-collar” families, share the traditional values because “that’s the way things are supposed to be.” In these homes, birth rates generally exceed replacement levels, the father is usually employed, and the family remains more or less intact during the critically important years when children receive the culture’s moral lessons. Very, very few of these people are wealthy.

In the second cohort, we find comfortable, tiny families with SUV’s, older mothers with costly fertility issues because of career-delayed childbirth, strong tendencies to narcissistic materialism, “flexible” morality, and consumerist hedonism. The second group dominates among the European intelligentsia where gay marriage and other non-traditional arrangements are more common, and where the demographic trend vectors toward eventual extinction because of sub-replacement birth rates.

I believe my cartoon portrait of the culture is mostly true, but that doesn’t by itself support the arguments for or against gay marriage. What it is intended to do, however, is to re-center our discussion: The health and stability of the family unit that supports child rearing should be our first priority and the ultimate litmus test for public policy in this area.

I will return to the family-first paradigm in a moment.

The Real World Considerations:

“Brand Poaching” and The Popular Will

Real world dynamics constrain dramatically unpopular measures in any working democracy. Gay marriage, as such, does not enjoy wide support outside of certain urban areas in the US. The great majority of the US population and separate majorities within an overwhelming majority the 50 states would still reserve “marriage” to the traditional man-woman family alliance. It is unreasonable in a democratic republic to expect a contrary definition to take hold generally any time soon, nor to expect the majority of the states to acquiesce in a developing legal situation that might ultimately compel them to make that accommodation. It was precisely to prevent the latter scenario that impelled to Clinton administration to support the Defense of Marriage Act, designed to permit state experimentation while insulating the non-participating states from mandated recognition of an arrangement not sanctioned within their own borders.

The name “marriage” has been taken.

At the risk of seeming to trivialize the issue, I do see the name problem primarily as one of a proprietary “brand” label unavailable to a competitor. The classic marriage model is very deeply embedded in the dominant culture, much more so than a major brand product is embedded in the market place.[2] In effect, the marriage “brand” belongs to the dominant paradigm just as much as Pepsi trademark belongs to the Pepsi Cola Company and not the Coca Cola Company.

This is one of those cases where historical association has created a firmly entrenched definition that takes on a proprietary quality over time. Staying with my analogy, only a majority of the “shareholders” have the option of surrendering the brand to the public domain; after all, they have owned the brand for several thousand years. This creates a “trademark” problem for the homosexual couples who want to get officially “married”.

If the national poll numbers hold true, the overwhelming majority of the voters in this democracy will be unwilling to share the brand marriage with homosexual couples. If gay / Lesbian quasi-marital arrangements are to be officially recognized, another name will be needed.[3]

An obsessive focus on the name of the institution is particularly counterproductive when so many needs of gay couples can be addressed without getting hung up on labels. I would reframe this important discussion by first looking more deeply and carefully at the core functions of the marital relationship and by addressing that institution’s social benefits generally.

Here, I find the family-first paradigm (with its focus on child birth and child rearing the central concern). I believe that we can develop public policies that incorporate the most important concerns of the homosexual community while enhancing the role of marriage as one of our essential social traditions.

The Family-First Paradigm

Child rearing is foremost among the real needs of gay couples to be addressed. This is one special category of cases that trumps the other considerations.

I am thinking of a gay couple, living in a committed relationship, who have chosen to adopt a small, disadvantaged child, an otherwise lost kid for whom (you’ll just have to trust me on this) the placement with two solid, productive, well educated, middle-class male parents is an extraordinary gift. In real world terms, the accomplishment of an officially recognized, lawful, generally recognized marriage of these two acting parents is not the first priority (for that matter a subsequently invalidated “marriage” certificate from a San Francisco clerk would be of little use to their child). This couple really needs the essential legal protections of the traditional marital relationship that relate to child rearing. It would be of immense value to this child, for example, to have been adopted by both parental figures, and for both of these two fine men to be allowed to form a legally recognized family unit where each share all the attendant authority (including discipline and next of kin medical authorizations), and all the attendant obligations (including the traditional duty of child support).

Every child benefits from having both parents on hand and in full parental authority whether the parents are biological, adoptive, step, gay or straight. But, under present circumstances, only one member of a gay couple may typically adopt a child. But our society benefits from gay adoptive parents however the child is brought into the world because there is an ongoing shortage of willing and qualified prospective parents. Society should not screen just for heterosexual parents or place barriers to homosexual parental adoption because that limits options for displaced children. Far too many parentless children are sent to less than ideal institutional settings.

At least three of the incidents of classic marriage are appropriate to gay couples with children: (a) joint parenting authority, (b) joint parenting obligation, and (c) joint and several child support obligation. There may be several creative variations on this approach, possibly extending even to step-parenting roles in some circumstances.

Before leaving this subtopic, I must stress that the family-first paradigm forcefully applies to all straight couples. My hope is that the discussion ignited by the gay activists and their sympathizers illuminates the broader dialogue about the need to bring fathers back into the families from which they have been absent, to strengthen and support the parental role generally, and to foster the reintroduction of authentic moral education and life discipline for children everywhere, within and outside the traditional family unit.

There is no higher priority.

The protection of the conditions for gay family life in the context of child rearing responsibilities is well within the range of appropriate state-by-state variation. The great genius of American federalism is that it contemplates and accommodates just this sort of creative experimentation on otherwise divisive social issues.

Experimentation and Local Options:

The Constraints

For these and many reasons, the “local option” alternative makes perfect sense in our federal system. But, given the sensitivity of the issue and the weight of national opinion, the gay accommodation options would need to actually stay local, lest the exceptions swamp the rule. The legal problem here is that the “full faith and credit” clause of the U.S, constitution requires each state to honor the arrangements validly entered into in a sister state, even when that state might not have approved the arrangement itself.

Applied to marriages, the result would be similar to that of a Nevada divorce, that is given automatic effect all 50 states, even those with longer waiting periods and stricter divorce requirements. Should Vermont, Massachusetts and California, say, allow gay marriages, we can safely predict that the remaining 47 states would eventually be flooded with married gay couples. This is why the Congress (with the full support of the Clinton administration) enacted the “Defense of Marriage Act” six years ago. That act does not prevent any state from approving gay marriages, but it does disallow the “full faith and credit” clause from requiring them to be honored in those states that choose not to do so.

Some are concerned that the Defense of Marriage Act, as a statutory enactment, might not provide an effective legal firewall for the non-participating states, that these states could someday be compelled to honor extraterritorial recognition of gay marriage. In this scenario, the U.S. Supreme Court decides under the equal protection clause to mandate such recognition. Therefore (as this argument goes) a constitutional amendment is required to prevent that outcome. These fears may be exaggerated, but, in candor, no one can dismiss as groundless the notion that the Supreme Court may on some future date refuse to enforce the Defense of Marriage Act. The upshot of this is that “local option” will realistically take the form of intra-state experimentation without mandatory extra-state recognition.

The President’s proposal for a constitutional amendment, (which, to be fair, was only a sketch as of late February 2004) seems to differ from earlier versions floated in Congress by explicitly preserving the states’ freedom to craft approved quasi-marital arrangements while preserving the “brand name” monopoly I referred to earlier. If any constitutional amendment is very narrowly crafted in what it prohibits and very generous in the latitude allowed states to craft alternative arrangements for gay couples, the opportunity for state experimentation might be better protected than at present.

I am watching any proposed amendment language carefully. I will urge opposition to any amendment crafted to hinder states who choose to allow the kind of child rearing arrangements for gay couples I’ve just outlined.

Given this epic clash between social need and well embedded tradition, we are called to think creatively. I see four challenges:

The Challenges

Challenge One. To the straight, pro-marriage community: Use this moment to think carefully about marriage as an institution and how it relates to the health of the larger culture.

Challenge Two. To the gay community eager to sign on: Address that first challenge, too; then take a hard look at the mess we straight people have made of the institution.[4] You have a unique opportunity here. How might you improve the institution of marriage for all of us?

Challenge Three. To those religious institutions that do not reject gays and Lesbians as mere sinners: You, also, have a unique opportunity here. Marriage is one sacrament. Are different sacraments appropriate?[5] Surely this is cause for deep theological and pastoral reflection.

Challenge Four. To all of us: How can we, as a nation, bring fathers back into the families from which they have been absent, strengthen and support the parental role generally, and foster the reintroduction of authentic moral education and life discipline for children everywhere, both within and outside the traditional family unit?

We have somehow plunged headlong into a very difficult discussion that transcends all our immediate political struggles. Ironically this has taken place at a time when we are a nation targeted and under attack by profoundly homo-phobic, misogynist Islamofascists.

We need to work this marriage issue out over time and as one nation. No one opposing gay marriage should be labeled homophobic or bigoted; there are reasonable arguments against such a step that have nothing to do with the core love and respect due our homosexual friends and neighbors. And no one who advocates gay marriage should be dismissed as immoral; there are deeply authentic concerns of homosexual men and women that merit the serious, thoughtful, and compassionate attention of all of us.


Copyright © 2004 by Jay B. Gaskill

Permission to copy or reproduce for discussion purposes is readily available. Just contact Jay B. Gaskill, attorney at law, via e mail:

[1] For brevity, gay is meant to include gay and or Lesbian throughout.

[2] The institution of marriage (all its warts and variations in form included) has been a remarkably stable social model for several thousand years. This remains true in spite of the divorce rate and all of the changes over the last few centuries. The classic marital model has remained the same in its most essential elements, among which are: (1) Open notoriety. That is, marriage is open, public and proclaimed, conferring a recognized “same family” status on its members, that of wife and husband. (2) Non-reservation. That is, the marriage arrangement is open-ended in time, and its inherent mutual obligations are not qualified by reserved exceptions, like “as long as we have male children”. (3) Official sanction needed to establish it and to dissolve it. Unlike an ordinary contract, marriage can’t be terminated at will by the parties.

[3] What’s in a name? Everything and nothing. In that connection, the response of the major religious denominations that choose to “bless” or otherwise sanction homosexual unions, will influence the discussion.

[4] Marriage means divorce. Gay couples are no more likely to avoid divorce than the rest of us. And divorce is ugly. Just listing a few phases makes the cautionary point: alimony, bitter child custody disputes, vengeful ex-spouses, endless property disputes. Divorce lawyers prosper because of human nature. New issues will arise peculiar to gay divorces: Should there be different rules in a gay divorce if one spouse decides he or she is straight? Should the waiting periods be the same? What should courts do when the first polygamist raises an equal protection challenge? This is but a short list of the problems that will inevitably arise. Regrettably, no jurisdiction I know of has managed to come up with fair, objective, easily administrated rules for resolution of divorce related issues. Consider that in commercial and criminal law, millions of dollars and multi-decade jail sentences are meted out every week with less fuss and anger than in a typical divorce case. I believe that a major reason for this is the absence of objective rules. This explains the otherwise perplexing fact that more judges and lawyers are murdered by litigants every year in divorce cases than all other legal proceedings combined. That which is not rule-driven becomes personal.

[5] In legal principle, there is no reason at all that a given religious institution could not sanctify a gay marriage by any name deemed consistent with that denomination’s theology and practice. The contents of sacraments and liturgies belong exclusively to the religious domain.

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